Campbell v Sutherland [2020] FCA 765

Campbell v Sutherland [2020] FCA 765

Although there was at least a serious question to be tried as to whether the respondent's mark was deceptively similar to the applicant's registered trade mark, the balance of convenience favoured refusing interlocutory relief because an injunction would impose direct monetary costs on the respondent in changing business materials, while the matter could instead be expedited to final hearing.

Jurisdiction
Australia
Judgment Date
25 May 2020
Procedural Posture
Trade Mark Infringement Proceeding Concerning an Application for an Interlocutory Injunction / Interlocutory Application Pending Trial
Outcome
The application for an interlocutory injunction was dismissed, costs were reserved, pleading directions were made, the matter was referred to mediation, and the proceeding was listed for a remote final hearing.
Legal Topics
['interlocutory Injunction' 'trade Mark Infringement' 'deceptively Similar Marks' 'substantially Identical Marks' 'balance of Convenience' 'undertaking as to Damages']
['intellectual Property' 'trade Marks'] ['interlocutory Injunction' 'trade Mark Infringement' 'deceptively Similar Marks' 'substantially Identical Marks' 'balance of Convenience' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Trade Mark Infringement Proceeding Concerning an Application for an Interlocutory Injunction / Interlocutory Application Pending Trial

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that the respondent\'s use of "Porky\'s Pizza" infringed the applicant\'s registered trade mark "Porkys" under s 120 of the Trade Marks Act 1995 (Cth).' 'Whether the balance of convenience favoured granting an interlocutory injunction restraining the respondent from using the impugned mark pending trial.']

Ratio Decidendi

Although there was at least a serious question to be tried as to whether the respondent's mark was deceptively similar to the applicant's registered trade mark, the balance of convenience favoured refusing interlocutory relief because an injunction would impose direct monetary costs on the respondent in changing business materials, while the matter could instead be expedited to final hearing.

Court Disposition

The application for an interlocutory injunction was dismissed, costs were reserved, pleading directions were made, the matter was referred to mediation, and the proceeding was listed for a remote final hearing.

Orders

  • ["The applicant's application for an interlocutory injunction filed on 13 May 2020 is dismissed." 'Costs of the application are reserved.' 'The applicant is given leave to file and serve an amended statement of claim by 4 June 2020.' 'The respondent is to file and serve any amended defence by 11 June 2020.' 'The...